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Tennessee Spill: Regulation Hazards | The Nation

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Tennessee Spill: Regulation Hazards

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To read more of Kelly Hearn's reporting on the TVA spill,
check out "Toxic
Coal in Tennessee
," "Tennessee's Dirty
Data
" and "The
Dredge Report
."

Federal Failure

About the Author

Kelly Hearn
Kelly Hearn is an investigative reporter whose work has been funded by the Pulitzer Center on Crisis Reporting and the...

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Many say that while the federal government needs to intervene to fill in regulatory voids, Washington officials have fallen down on the job, in large part by failing to designate coal ash as a hazardous waste and by handing the burden of regulating disposal sites over to the underfunded state agencies. And industry groups have done their part to retain the status quo.

Tom Adams, executive director of the American Coal Ash Association, told me that what happened in Kingston has nothing to do with coal ash chemistry. It was an engineering failure, one that's wrongly become a debate about coal ash toxicity. I asked him if he thought coal ash was toxic. He said the proof lies in the EPA's decisions in 1993 and 2000, when the agency ruled that coal ash is not a hazardous waste. "The EPA spoke clearly on the matter," he said. "The decision represents the best science." He gave me the industry line that heavy metals in coal ash exist naturally in rocks and soil. I asked him about scientists' claims that burning coal causes those toxins to concentrate. "But you have to ask if those new concentrations are harmful to human health," he said. "If you have 1 part per billion of something in the soil and 2 parts per billion in the ash, that higher concentration can still be far below human health limits." Then he said that when a billion gallons of anything ends up in places it shouldn't go, you're going to have problems. "A billion gallons of milk will cause problems," he said, adding that if the EPA rules coal ash to be hazardous, it would be costly for industry and scare people from products made from coal ash, like drywall and fertilizer.

If Adams has a mirror adversary, it's Lisa Evans. For years, she enforced hazardous waste laws as an EPA attorney before leaving the agency to sue it over coal ash on behalf of the Sierra Club and four other groups. I told her what Adams and others had said about the 2000 EPA decision being incontrovertible evidence and that switching its classification would mean the EPA would be doing a 180. "That's disingenuous," she said. "The story is more complicated."

Evans says that in March 2000, the agency released an unsigned determination letter saying coal ash needed to be listed as a contingent-hazardous waste, a kind of middle-ground designation. But trade organizations including the Utility Solid Waste Activities Group and the Edison Electric Institute wrote letters to officials in Washington arguing that the designation would be a massive burden. Officials backpedaled under the pressure. In the bureaucratically impossible timeframe of a month, she said, EPA officials "kept the science but changed their conclusion." She said the agency even admitted that the science indicated potential problems, especially with regard to arsenic and that it had been a hard decision. "The science back then didn't give either side a slam-dunk, so for industry to say that the agency would be making a 180-degree turnaround just isn't right."

But in recent years, more studies have brought red flags. And some appear to have been buried. Evans, who handles coal ash issues for the group Earthjustice, has worked to reveal studies suppressed by the Bush administration. In one case, she heard through personal contacts about a 2006 agency study showing that coal ash ponds were poisoning groundwater sources. When she looked in the EPA docket (a collection of scientific papers, public comments and regulatory actions on a particular topic), it wasn't there. "There are over 4,000 documents concerning coal ash," she said. "I thought it was very curious that a study about leaching potential of coal ash was nowhere to be found." When she got her hands on the report through the Freedom of Information Act, it showed that ponds can leach as high as 100 times the maximum arsenic contaminant level and selenium leaches at levels up to 200 times its safe level.

There was another example.

Evans was working with Eric Schaeffer, a former EPA regulator who quit the agency in protest over its failure to enforce clean air laws. EarthJustice had filed claims to see a 2002 EPA risk assessment but was denied by the Bush administration. That 2002 study (which contains some data that was eventually released in 2007) was just released this March by the Obama administration. "Essentially, the Bush administration buried a report identifying very substantial risks to health and the environment," Evans said. Using that study and others, both groups revealed a jointly written report in May warning that people who drink well water near unlined ponds where the water has been contaminated with arsenic from the ash have a one-in-fifty chance of developing cancer. (When asked in an e-mail exchange why the 2002 study wasn't released, an EPA spokesperson said only that the document was put into the docket to give the public access to it.)

A New Era?

For eight years, The Bush administration ignored coal ash threats and gave credence to the theory that states are good guard dogs. But signs are changing. One Congressional bill introduced by Representative Nick Rahall in January proposes fedral regulations governing coal ash disposal. Then on May 12, the EPA took control of the Kingston cleanup away from state officials. EPA spokesperson Tisha Petteway told The Nation that since Kingston, the agency has "executed new efforts to prevent future threats to human health and the environment." She said the EPA will check the structural stability of impoundments "to prevent future catastrophic failures." And information requested by the EPA on roughly 300 ponds will be bundled into a report to be released by the end of the year. But the real shot across the bow came in a recent coal ash industry conference in Kentucky, where Matt Hale, director of the EPA's Office of Solid Waste, told attendees that a reconsideration of coal ash's nonhazardous status was on the table.

"It's amazing that this is a problem the vast majority of the public and much of the scientific community had no idea existed," said William Chameides, an environmental toxicologist at Duke University. "Most people didn't know about it, but those who did assumed that most coal ash was either being recycled or disposed of safely."

What is clear is that coal helps to provide power to countless light switches, flat-screen televisions and iPods in America. As more and more coal-fired plants come on line, more and more ash piles up. And Kingston has become a symbol, a curtain-raiser for a deeper problem: we simply don't know where to put it all.

"The Obama Admnistration is absolutely on the right path by proposing federal regulation of coal ash storage and disposal," said Evans. "States have had decades to get this right, and they have failed miserably."

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